Friday, March 20, 2015

commercial advertising or promotion post-Lexmark

Steven Novella wrote two articles criticizing the practice
of Edward Tobinick, “a doctor who provides medical treatment to patients with ‘unmet
medical needs’ via two institutes—‘Edward Lewis Tobinick M.D.,’ a California
medical corporation, and ‘INR PLLC,’ a Florida professional limited liability
company—both doing business as the ‘Institute of Neurological Recovery.’” Novella
published the first article, “Enbrel for Stroke and Alzheimer’s”, on May 8,
2013 in response to a piece published in the Los Angeles Times. As Novella
described it,

The [Times] story revolves around
Dr. Edward Tobinick and his practice of perispinal etanercept (Enbrel) for a
long and apparently growing list of conditions. Enbrel is an FDA-approved drug
for the treatment of severe rheumatoid arthritis. It works by inhibiting tumor
necrosis factor (TNF), which is a group of cytokines that are part of the
immune system and cause cell death. Enbrel, therefore, can be a powerful
anti-inflammatory drug. Tobinick is using Enbrel for many off-label
indications, one of which is Alzheimer’s disease (the focus of the LA Times
story).

“The allegedly false statements in the first article concern
the viability of Plaintiff Tobinick’s treatments, the scientific literature
discussing those treatments, the size and locations of Plaintiff Tobinick’s
Institutes, and, by implication, the categorization of Plaintiff Tobinick’s
practice as ‘health fraud.’” Novella published the second article, “Another
Lawsuit To Suppress Legitimate Criticism—This Time SBM” on July 23, 2014, after
plaintiffs sued. It mostly restated the content of the first article, though
plaintiffs also alleged that it was false and misleading to say that “there
have been no double-blind placebo-controlled clinical trials of the treatment provided
by the Plaintiffs.”

Plaintiffs sued Novella as well as the Society for Science-Based Medicine, whose responsibility
for the articles was “far from clear.”The articles weren’t posted on the Society’s website, though there’s a
link to the first article on its wiki.The articles were and remained posted on the Science-Based Medicine blog
(SBM blog).Novella was involved both
with the blog and the Society, as “Founder and Executive Editor” of the blog, and
as a Board member and Officer of the Society. Plaintiffs argued that the SBM
Blog was part of the Society’s structure and internet presence, such that the
Society should be liable for the content of the articles.

Plaintiffs sued for violations of the Lanham Act/unfair
competition, trade libel, and libel.

Treating the defendants’ motion as a motion for summary
judgment, the court found that the Lanham Act claims against the Society had to
fail as the blog posts weren’t “commercial advertising or promotion,” at least with
respect to the Society, and that the libel claims had to be dismissed without
prejudice because plaintiffs failed to provide the requisite pre-suit notice,
but that it couldn’t yet be determined whether §230 barred the libel claims
against the Society.

The Society is a §503(c)(3) nonprofit with an educational
mission promoting “the concept of science-based medicine—that all health care
practices and products need to be rooted in a single, science-based standard of
care, delivered within a consistent framework of scientific standards.” It has
a “Donate” button on its homepage, and there are both free and paid
memberships.It has a web store with links
to purchase eBooks comprised of compiled SBM Blog posts; the eBooks are free
with Society membership.

The evidence that the Society was responsible for the blog
consisted primarily of various statements made by Board members and Officers of
the Society, as well as the Society itself, that the SBM Blog is one of two
blogs “for the [S]ociety.” There was notable cross-membership, and the two
websites supported and encouraged cross-traffic by linking to each other and by
offering the “Science–Based Medicine” eBooks. However, there were also
distinctions: the SBM blog predated the Society by at least five years; donations
made to the SBM Blog do not go to the Society but rather to the New England
Skeptical Society; and the Society stated that Novella published the articles
without the Society’s knowledge, consent, or participation.The relationship between the Society and the
SBM blog was a material fact that precluded resolution of the CDA immunity
argument.

However, no reasonable jury could find that the allegedly
false/defamatory statements constituted commercial speech as to the Society.
The Eleventh Circuit uses the Gordon
& Breach test for “commercial advertising or promotion,” except that,
after Lexmark, the requirement that
the parties be competitors is apparently abrogated.That leaves (1) commercial speech (3) for the
purpose of influencing consumers to buy defendant’s goods or services that are
(4) disseminated sufficiently to the relevant purchasing public to constitute
“advertising” or “promotion” within that industry.

To evaluate “commercial speech,” we turn to the First
Amendment test. Core commercial speech does no more than propose a commercial
transaction.But more broadly,
commercial speech is assessed by whether it is in the form of an ad, whether it
refers to specific products sold by the defendant, and whether the defendant
had an economic motivation for the speech. Plaintiffs argued that the
science-based medicine movement was an economic enterprise, making the speech
commercial, as did the sale of eBooks and memberships, along with the
acceptance of donations.

Nope. Neither article proposed a commercial
transaction.They were not “expression
related solely to the economic interests of the speaker and its audience,” but
instead “clearly state their intent to raise public awareness about issues
pertaining to Plaintiffs’ treatments, a goal in line with the Society’s
educational mission.” They did discuss the price of the treatments, but that
didn’t make them relate “solely” to the economic interests of the speaker and
the audience.In Bolger, by contrast, the materials found to be commercial speech
used an ongoing public debate to advertise the defendant’s own products, which
were referenced in the informational pamphlets the defendant distributed, and
the defendant conceded that the pamphlets were ads.

Here, “[t]he Society published articles questioning the
viability of Plaintiffs’ medical practices and the scientific rigor of their
research. The only ‘products’ referenced within the first article are Plaintiffs’
own treatments; no competitors’ products—let alone products offered for sale by
the Society—are cited in the articles.”Novella’s medical practice and the drugs he used appeared in the second
article “only to illustrate Novella’s belief that he and Plaintiffs are not
competitors.”This was explicitly a
response to the lawsuit, not an independent plug for Novella’s practice—which,
the court noted, was not the Society’s practice.

Furthermore, the Society was a nonprofit:

Like nearly every not-for-profit
corporation, it seeks to support itself by soliciting donations and offering
products for sale. That does not render its speech commercial, particularly
where, as here, there is nothing in the record to indicate that the articles
containing the allegedly false and/or defamatory statements do not remain free
to view online. The articles simply do not constitute commercial speech, at
least with respect to the Society.

Florida requires pre-suit notice of libel claims to media defendants,
which was not properly given here.To
determine whether the Society was a media defendant, the court asked whether it
engaged “in the traditional function of the news media,” which is “to initiate
‘uninhibited, robust, and wide-open debate on public issues.’” Media defendants
are not just those who “impartially disseminate information,” or “issue
unsolicited, disinterested and neutral commentary as to matters of public
interest,” but includes those who “editorialize as to matters of public
interest without being commissioned to do so by [their] clients.” The Society’s
stated mission of educating the public qualified it as a media defendant, since
there was no evidence that any of the allegedly false and/or defamatory
statements were commissioned by clients. Dismissed with leave to refile.

Creative Commons/disclaimer

Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.